Category: Uncategorized

“There is a large body of caselaw on civil contempt in family proceedings.  From that body of caselaw, I distill the following legal principles:

a.  The purpose of a contempt order in Family Law is to force compliance by the defaulting parent with an order, not punishment for non-compliance.  The contempt order acts as a deterrent to the specific offender and others of a similar disposition from defying court orders and from undermining the administration of justice (Starzycka v. Wronski, 2005 ONCJ 329 (CanLII), [2005] O.J. No. 5569 (C.J.), at para. 16).

b.  Court orders are not suggestions, guidelines, or invitations open to acceptance or rejection by the parties. Disobedience must have consequences (Purcaru v. Purcaru,2010 ONSC 4031 (CanLII), at para. 37, aff’d 2010 ONCA 92 (CanLII)).  The court makes decisions when the parties cannot do so, or where supervision of the decision is required to protect the children.  Whether an order is on consent or results from a contested hearing is of no moment.  The orders are of equal force and must be obeyed.

c.  Contempt is a remedy open to either party under FLR 31. It is also a remedy that the court can impose on its own initiative where the court is required to uphold the integrity of the legal system. (Zalman v. Zalman, [2002] O.J. No. 1818 (S.C.)).

d.  Civil contempt is the “big stick” of civil litigation, a remedy of last resort imposed sparingly and with great caution in family proceedings, and only where other means to resolve the matter have failed (Hefkey v. Hefkey, 2013 ONCA 44 (CanLII), at para. 3, Fisher v Fisher, 2003 CanLII 2119 (ON SC), [2003] O.J. No. 976 (Ont. S.C.), at para. 11, Woronowicz v. Conti, 2015 ONSC 5247 (CanLII), at para. 17, Godard v. Godard, 2015 ONCA 568 (CanLII), at para. 17, Carey v. Laiken, 2015 SCC 17 (CanLII), at para. 36, and most recently in Ruffolo v. David, 2019 ONCA 385 (CanLII), at para. 18).

e.  The paramount consideration in access cases is the best interests of children, and the courts ought to encourage the parents to involve professionals to speak and work with the children to address their relationship with their parents (Ruffolo, supra, at para. 19).

f.  Contempt proceedings arise frequently in family cases because of lack of compliance with orders (Gordon v. Starr, 2007 CanLII 35527 (ON SC), [2007] O.J. No. 3264 (S.C.), at para. 23).

g.  In order for the court to find contempt, the court must find a) that there was an order, b) the order was brought to the notice of the alleged contemnor, c) the order is clear as to what should or should not be done, d) the alleged contemnor did not obey the order, and e) that the failure to obey the order was willful and intentional.  The burden of proof is on the moving party to prove these elements beyond a reasonable doubt (Van de Mierden v. Van de Mierden, [2009] W.D.F.L. 4947 (Ont. S.C.)at para. 29, Prescott-Russell Services for Children and Adults v. G.N. (2006), 2006 CanLII 81792 (ON CA), 82 O.R. (3d) 686 (C.A.), at para. 27, Hobbs v. Hobbs, 2008 ONCA 598 (CanLII) at para. 26, Sickinger v. Sickinger, 2009 CanLII 28203 (ON SC), [2009] O.J. No. 2306 (S.C.) aff’d 2009 ONCA 856 (CanLII), Woronowicz, supra, at paras. 33-25, and Godard, supra, at para. 11).

h.  The “willfulness” that is required is that the failure to obey the order must be deliberate and not accidental or unintentional. The willfulness requirement may be met by intentional, willful or reckless disregard, or indifference to the authority of the order or the court (R. v. M.R., [2002] O.J. No. 1519 (S.C.)at paras. 219-221).

i.  The absence of contumacious intent or a justification for the breach of the order is a mitigating, not exculpatory factor, relevant to punishment, not liability.  This is especially so in family proceedings where feelings run high, a party often believes that only s/he is right and the other is wrong, there are feelings of bitterness and betrayal and self-righteousness, and that these feelings persist even after the court has made its determination such that a party feels justified in defying an order (S.R., supra, S.V. v. C.T.I., [2009] O.J. No. 816 (S.C.)at para. 6, Coletta v. Coletta, 2003 CanLII 2412 (ON SC), [2003] O.J. No. 81 (S.C.), Starzycka, supra, at para. 16 and Zadegan v. Zadegan, 2003 CanLII 49378 (ON SC), [2003] O.J. No. 5282 (S.C.), at para. 23).

j.  A parent is not entitled to ignore an order, even one made on consent.  Where a parent is concerned about harm during the other parent’s access time, the solution is to obtain an order varying access.  She or he cannot unilaterally ignore an order unless there is serious, imminent harm (R.K. v. K.T.M.K., [2007] O.J. No. 600 (S.C.)at para. 29, L.M.K. v. E.P.R., [2005] O.J. No. 5782 (S.C.), at paras. 19-20).

k.  There must be clear and compelling reasons to legally justify violation of an order. In order to do this, the parent must show, by admissible evidence, that he or she has a reasonably held belief that there is a good reason to defy the order, such as imminent harm to the children. Putting it another way, the defaulting parent’s belief must be sincerely held. A sincere belief of immanent harm or danger, alone, is not sufficient.  There must be a validly objective justification for the breach based on the child’s needs and interests, based in evidence (Kassay v. Kassay, 2000 CanLII 22444 (ON SC), [2000] O.J. No. 3373 (S.C.), at para. 25; Docherty v. Catherwood, 2015 ONSC 5240 (CanLII), at para. 19; and Houben v. Maxwell, 2016 ONSC 2846 (CanLII), at p. 12 and 23, Jackson v. Jackson, 2016 ONSC 3466 (CanLII), at para. 59 to 61).

l.  Whether there is a need to protect the children is a question for the Court to determine, not the parent. The parent must abide by the order and move promptly to modify the order being disobeyed (Salloum v Salloun, [1994] A.J. No. 304 (Alta. Q.B.), at para. 20; Houben, supra, at para. 23; Chatur v. De Los Reyes, [2012] O.J. No. 2690 (C.J.), at para. 31, Prescott, supra, at paras. 47-50, Ralston v. Schultz, 2005 ONCJ 44 (CanLII), [2005] O.J. No. 635 (S.C.), Docherty v. Catherwood, 2015 ONSC 5240 (CanLII)(S.C.) paras. 18-21).

m.  The children’s wishes are to be considered, depending on the children’s ages (V., supra, at para. 20).

n.  The burden of proving any defence or mitigating factor is on the responding party.  I was referred to no authority as to the nature of the burden.  As with defences and justifications in criminal law, the burden on the responding party should be on the civil standard.

o.  A parent must take all reasonable steps to ensure compliance with the order. A parent cannot justify his or her failure to follow an access order because the child did not want to go.  This makes the child responsible for the parent’s breach of the order. Often, the parent abdicates to the child the decision the parent ought to make because the parent knows that the decision the child will make will be the decision that the parent would have madeand which is one which violates the order.  The parent abdicates his or his/her role to the child because the parent does not want to be responsible for the violation of the order, or to suffer the consequences. A parent’s obligation is to do what is reasonable and necessary, and actively require the child to comply with the order by explanation, exhortation, and the threat and execution of discipline (V., supra, at para. 46, Haywood v. Haywood, 2010 ONSC 5615 (CanLII), [2010] O.J. No. 4317 (S.C.), at paras. 29, 41-43, Stuyt v. Stuyt, [2009] O.J. No. 2475 (S.C.), at para. 54, Geremia, supra, at para. 63, and Godard, supra, at para 29).

p.  What steps a parent must take to have the child attend access with the other parent depends on the circumstances and age of the child.  Usually, passive “reasoning with the child” is insufficient and is in breach of the access order.  There is a positive obligation to ensure that a child complies with the order. The parent is not entitled to leave access decisions to the child (Geremia, supra, at para. 63, Quaresma v. Bathurst, [2008] O.J. No. 4734 (S.C.), at para. 8, B.K. v. A.P., [2005] O.J. No. 3334 (S.C.)at paras. 22-25, Godard, supra, at para. 29).”

Janowski v. Zebrowski, 2019 ONSC 4046 (CanLII) at 24

“In an Application to stay a proceeding because of an arbitration provision, the Court must first interpret the arbitration provision, then analyse the claims made to determine whether they must be decided by an arbitrator under the terms of the agreement as interpreted.  If the answer to the second question is “yes” then the proceeding should be stayed and the claims referred to arbitration subject to the exceptions in s. 7(2) of the Arbitration Act, 1991 (see MDG Kingston Inc. v. MDG Computers Canada Inc., 2008 ONCA 656, para. 14; Mantini v. Smith Lyons LLP (2003), 2003 CanLII 20875 (ON CA), 64 O.R. (3d) 505 (C.A.) at para. 17).”

         Gorman v. Kosowan, 2016 ONSC 4371 (CanLII) at 17

“Generally, there are objective indicators that can assist in determining whether an advancement is a gift or a loan: Locke v. Locke, 2000 BCSC 1300, [2000] B.C.T.C. 681, at para. 21; Klimm v. Klimm, 2010 ONSC 1479, [2010] O.J. No. 968, at para. 28-32; Mora v. Mora, 2011 ONSC 2965, [2011] O.J. No. 2188, at paras. 38-40. A gift is a transfer in which the absence of an expectation of repayment tends to be reflected in the absence of security, recording, payments or efforts to collect payments. A loan often involves a formal, recorded transfer in which terms are set out and in which repayment is made or sought. In evaluating whether the presumption of resulting trust has been rebutted, a trial judge will naturally look at such indicia.”

         Barber v. Magee, 2017 ONCA 558 (CanLII) at 4

“With respect to a claim for a fee premium, this court laid down the following principles in Christian Brothers of Ireland in Canada (Re) (2003), 2003 CanLII 18327 (ON CA), 68 O.R. (3d) 1 (C.A.):

Many factors may bear on whether lawyers are entitled to a premium over their hourly rates. These factors include the difficulty and complexity of the case, the responsibility assumed by the lawyer, the amount in issue, the importance of the case to the client, the skill shown by the lawyer, the result achieved, the client’s ability to pay and the lawyer’s corresponding financial risk… The judge or officer assessing or approving a lawyer’s account must, in exercising discretion, take into account and weigh these factors in deciding whether to award a premium” (at para. 17).

See also: Ontario (Ministry of Transportation) v. Tripp (1999), 1999 CanLII 3762 (ON CA), 123 O.A.C. 278.

 As reconfirmed by the Court of Appeal in Wu Estate v. Zurich Insurance Co., (2006), 2006 CanLII 16344 (ON CA), 268 D.L.R. (4th) 670 (Ont. C.A.), leave to appeal to the Supreme Court of Canada dismissed, [2006] S.C.C.A. No. 289, the duty of the court in considering whether or not to approve a settlement reached on behalf of a party under a disability is to protect the party and to ensure that the settlement is in his or her best interests (at para. 10).

It goes without saying that any premium paid to counsel who helped a plaintiff in a tort action achieve a resolution of his or her claim will reduce the funds available to meet the plaintiff’s needs and otherwise compensate him or her for damages sustained.  However, as important as those interests are, they must be balanced against the need to provide fair compensation for lawyers who assist in achieving the result.

Ensuring, to the extent possible, that the lawyers’ contribution to the result is appropriately recognized is important for several reasons.  First, lawyers are entitled to fair compensation for services rendered and to reimbursement of their cost outlays.  Second, lawyers who are willing to assume carriage of files in circumstances where the result is not certain and where unpaid fees and paid disbursements may have to be financed over a long period of time contribute to access to justice: Christian Brothers, at para. 21.”

DeMichino v. Musialkiewicz, 2012 ONCA 458 (CanLII) at 18-21

“Historically, it has been difficult for a biological parent to obtain the right to access a child placed in the extended care of a children’s aid society (previously called “Crown Wardship”). There was a legislated presumption against access and there was a strict test to be met. The legislation at the time, the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”), required that an applicant establish that the relationship “is beneficial and meaningful” to the child and that the access would not impair the child’s opportunities for adoption. This changed in 2018 when the CFSA was repealed and replaced with the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). The new legislation reflected a change in the approach to many aspects of child protection law, relating to children in care, including access. The former strict interpretation of a “beneficial and meaningful” relationship was expanded to incorporate a broadly-based best- interests analysis.

This court has referred to the significance of the change on more than one occasion. Yet, some lower courts continue to apply jurisprudence based on the old restrictive test.

Here, the trial judge applied the new approach to the determination of access for a mother and ordered access at the discretion of the children’s aid society. The appeal judge applied the old restrictive test, allowed the appeal and overturned the decision.

For the reasons that follow, I would allow the appeal and restore the trial judge’s order.”

Children’s Aid Society of Toronto v. J.G., 2020 ONCA 415 (CanLII) at 1-4

“The most basic obligation in family law proceedings is the duty to disclose financial information and this obligation is immediate and ongoing: Roberts, at para. 11; Manchanda v. Thethi, 2016 ONCA 909, 84 R.F.L. (7th) 374, at para. 13, leave to appeal refused, [2017] S.C.C.A. No. 29. As this court in Manchanda stated, at para. 13, “after continual admonitions by the courts and the legislature that parties to a matrimonial proceeding must produce financial documentation, wilful non-compliance must be considered egregious and exceptional”, with the result that “[t]hose who choose not to disclose financial information or to ignore court orders will be at risk of losing their standing in the proceedings as their claims or answers to claims may be struck.””

         Martin v. Watts, 2020 ONCA 406 (CanLII) at 19

“In Thomas v. Osika, 2018 ONSC 2712 (Ont. S.C.J.), Justice Audet reviewed the factors and jurisprudence on school placement issues.  The choice of school is a matter of judicial discretion and to assist in this determination, several principles have emerged over the years.  They include, inter alia, the following: development of a plan for the child’s education; ability of the parent to assist with the homework; emphasis must be placed on the interest of the child and not the parent; promote and maintain a child’s cultural and linguistic heritage; the impact to the child of changing schools; decisions that were taken before the separation; problems with the proposed school.  Cases are fact specific and a decision must always be made in the best interest of the child.”

         Hearty v. Hearty, 2020 ONSC 3875 (CanLII) at 51

“The appeal must be allowed. In my view, the motion judge’s reasons do not adequately explain how she resolved the conflicts in the evidence, nor do they support the conclusion that she reached.

The motion judge was presented with two very different versions of what the parties had agreed to. Faced with this conflict in the evidence, the judge determined that the respondent’s version of events should be preferred over the version advanced by the appellants. There is little explanation as to why she rejected the appellants’ version other than her finding that, because of the respondent’s limited means, it made little sense for her to have invested all of her money in the Property.

There was, however, substantial affidavit evidence supporting the appellants’ version of events, including their evidence that their wills were amended to give effect to the respondent’s life interest and the fact that they paid all of the Property’s expenses from the outset. The motion judge’s reasons do not explain why this evidence was rejected nor does the motion judge make and explain credibility findings. Given the important issues which turn on credibility in this case, the failure to make such findings was an error. If credibility cannot be assessed on a written record, that should indicate that oral evidence or a trial is required: Trotter Estate, 2014 ONCA 841, 122 O.R. (3d) 625, at para. 55. Care must be taken “to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantial unfairness enters”: Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at para. 44.”

         Lesenko v. Guerette, 2017 ONCA 522 (CanLII) at 17-19

“The identification of the valuation date involves the determination of two issues.  First, the court must decide when the parties separated.  Second, it must determine the point at which there was no reasonable prospect that the parties would resume “cohabitation.”   As previously indicated, at the first stage of the analysis, the principles and factors relevant to deciding whether parties are separate and apart or cohabiting in a conjugal relationship for the purposes of divorce entitlement and spousal support apply likewise to the inquiry as to when the parties separated for valuation date purposes (see also Rosseter, at para. 9; Tokaji, at para. 3).   With respect to the second stage, as indicated above, s. 1(1) of the Family Law Act  provides that “cohabit” means to live together in a conjugal relationship, whether within or outside marriage.  Accordingly, at the second phase of the analysis, the task is to determine the point at which there was no reasonable prospect that the parties would resume living together in a conjugal relationship.  The notion of “reasonableness” is at the heart of this analysis.  Half-hearted suggestions or discussions about possible reconciliation will not necessarily move the valuation date forward in the absence of sincere action by the parties to put their relationship back on track (Strobele, at para. 32). As Beckett J. stated in Torosantucci, a reasonable prospect of resumption of cohabitation “must be more than wishful thinking on the part of either party.   There must be more than residual affection that may linger by one or both of the parties.  The Act does not speak of a “prospect” of reconciliation but a “reasonable prospect.”   He added that in order to find that there is a reasonable prospect of resumed cohabitation, “there must be some indication or step taken by both of them in that direction” (see also Rosseter, at paras. 57-58; Tesfatsion, at para. 56).  A sincere desire on the part of one party to resume cohabitation and efforts by that party to advance this objective will not generate a reasonable prospect of resumed cohabitation if the other party has no mutual interest in exploring this possibility.  In the words of Corbett J. in Strobele, at para. 32, “groundless hopes of reconciliation should not extend the valuation date where one spouse has been clear in his or her intentions to end the relationship” (see also O’Brien, at para. 50).

The outcome of the second stage of the analysis may in some cases move the valuation date to a point later in time than the separation date for the purposes of divorce entitlement and spousal support.  As Whitten J. commented in Taylor v. Taylor, 1999 CarswellOnt 4653 (S.C.J.), at para. 9, it is possible that parties could be truly separated, but nonetheless both entertain a reasonable prospect that they may resume cohabitation at some ill-defined time in the future.  Whitten J. noted that in such circumstances, “[t]o seize upon the fact of separation without respect for the intention of the parties would discourage those who seek to contemplate the future of a relationship, outside the pressures of cohabitation” (see also Tesfatsion, at para. 45).

In Czepa, at para 15, the court described the quest for the valuation date in general terms as being “tied to that date when the marriage is irretrievably broken down and the resumption of cohabitation is not reasonably in the cards” (see also Shah v. Shah, 2018 ONSC 5784 (CanLII) (S.C.J.), at para. 77).  Determining the point at which there was no reasonable prospect of resumed cohabitation requires the court to carefully consider and weigh all of the relevant factors objectively.  In this regard, Scott J. commented as follows in Hogarth v. Hogarth, 2018 ONSC 3580 (CanLII) (S.C.J.), at para. 9:

The court must look at the specific facts related to each situation, as the determination of the valuation date is fact driven.  The court must draw conclusions concerning the intentions of the parties with respect to their relationship.  Intentions by necessity will be decided by a review of both the statements and actions of the parties and an analysis of the consistency of one with the other.

The various factors outlined above relating to cohabitation and the separation date are relevant to whether there was a reasonable prospect that the parties would resume cohabitation, but they are not determinative (Rosseter, at para. 53).  However, the evidence respecting the manner in which the parties managed their financial affairs post-separation may be particularly relevant to the determination of the valuation date.  When one or both of the spouses make plans for their assets and general finances as separated persons, the courts often consider this to be strongly indicative that there is no real prospect of resumed cohabitation (Oswell, at para. 19).”

Al-Sajee v Tawfic, 2019 ONSC 3857 (CanLII) at 37-40

“Part VI of the CJA (Courts of Justice Act)– under the heading “Judges and Officers” – provides for the appointment of the Children’s Lawyer by the Lieutenant Governor in Council:

Children’s Lawyer

89(1) The Lieutenant Governor in Council, on the recommendation of the Attorney General, may appoint a Children’s Lawyer for Ontario.

Subsections 89(3)-(3.1) set out the Children’s Lawyer’s duties:

(3) Where required to do so by an Act or the rules of court, the Children’s Lawyer shall act as litigation guardian of a minor or other person who is a party to a proceeding.

(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

Under s. 112, the Children’s Lawyer may also cause investigations to be made, report to the court, and make recommendations to the court in custody and access matters.

(3)         Other statutes

In addition to providing legal representation to children in custody and access disputes, the Children’s Lawyer:

• • • • Provides legal representation to children in child protection proceedings, alternative dispute resolution proceedings, and secure treatment and health emergency matters pursuant to ss. 78(3), 78(5), 17(3), 161(6)and 171(8) of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”);

• • • • Provides independent legal advice to children as well as minor parents consenting to adoption pursuant to ss. 180(6), 180(7) and 180(11) of the CYFSA, and rr. 34(11) and 34(11.1) of the Family Law Rules, O. Reg. 114/99;

• • • • Acts as the litigation guardian for minors in all applications for guardianship of a child’s property; and

• • • • Is the head of the Office of the Children’s Lawyer (“OCL”). The OCL has one function: to support the Children’s Lawyer in fulfilling her independent statutory duties and functions.”

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII) at 10-13